The Business, Entrepreneurship & Tax Law Review Volume 2 Issue 2 Symposium: Innovation in Media and Article 3 Entertainment Law 2018 Scènes à Faire as Identity Trait Stereotyping Jasmine Abdel-khalik Follow this and additional works at: https://scholarship.law.missouri.edu/betr Part of the Law Commons Recommended Citation Jasmine Abdel-khalik, Scènes à Faire as Identity Trait Stereotyping, 2 BUS. ENTREPRENEURSHIP & TAX L. REV. 241 (2018). Available at: https://scholarship.law.missouri.edu/betr/vol2/iss2/3 This Conference Proceeding is brought to you for free and open access by the Law Journals at University of Missouri School of Law Scholarship Repository. It has been accepted for inclusion in The Business, Entrepreneurship & Tax Law Review by an authorized editor of University of Missouri School of Law Scholarship Repository. For more information, please contact [email protected]. Abdel-khalik: Scènes à Faire as Identity Trait Stereotyping Scènes à Faire as Identity Trait Stereotyping Jasmine Abdel-khalik* ABSTRACT There is at least one place where the law not only recognizes but expects and en- courages stereotyping based on race, ethnicity, gender, sexual orientation, gender expression, nationality, and the like (“identity traits”)—stock characters. A stock character is the archetype of a story’s character and, as such, is excluded from cop- yright protection, making the stock freely available for other authors to use. How- ever, harm arises when courts agree that a stock character is comprised of an identity trait and any other characteristic, indicating that what flows naturally from that iden- tity trait is something more than just that identity—a stereotype. In fact, identity trait stereotyping appears in the seminal stock characters case, Nichols v. Universal Pictures, involving the “low comedy Jew and Irishman.” There are three steps courts can take to minimize identity trait stereotyping while continuing to permit the use of stock characters. First, courts should recognize three categories of characters in creative works: stock, indefinite, and distinctly deline- ated. While only distinctly delineated characters would have copyright protection, the intermediate category allows courts to find that a character has multiple charac- teristics without implying that the characteristics are standard for specific identity traits. Second, courts must separate the determination of a character’s scope and copyrightability from the substantial similarity analysis to avoid conflating similar- ity with stock. Third, when possible, courts should also take the opportunity to cor- rect the errors of the past. While no copyright doctrine alone is to blame for society’s stereotyping and stere- otypes, scènes à faire grants judicial approval for continuing stereotyping. Without more care, the consequences could not only further entrench negative stereotypes in the creative mind, but also in the minds of those who consume their creative product. * Associate Professor of Law, University of Missouri-Kansas City School of Law. J.D., University of Michigan; B.A., Cornell University. For all their comments, the author thanks the participants of the Scene Change: Innovation in Media and Entertainment Law 2018 symposium at the University of Mis- souri School of Law, particularly Professors Dennis Crouch, Mary LaFrance, and Gary Myers; the par- ticipants of the UMKC Faculty Scholarship Colloquium; and Associate Dean Nancy Levit. The author thanks Professor Mikah Thompson for her comments and writing support. The author thanks the UMKC Law Foundation for its research grant, which supported this article. Finally, the author thanks her mother for her love, support, and enthusiasm. Published by University of Missouri School of Law Scholarship Repository, 2018 1 The Business, Entrepreneurship & Tax Law Review, Vol. 2 [2018], Iss. 2, Art. 3 242 B.E.T.R. [Vol. 2 2018 I. INTRODUCTION A casting call for the Straight Outta Compton movie: SAG OR NON UNION CASTING NOTICE FOR FEMALES-ALL ETHNICITIES from the late 80’s. Shoots on “Straight Outta Compton.” Shoot date TBD. We are pulling photos for the director of featured extras. VERY IMPORTANT—You MUST live in the Los Angeles area (Orange County is fine too) to work on this show. DO NOT SUBMIT if you live out of the area. Nobody is going to be flying into LA to do extra work on this show—and don’t tell me you are willing to fly in. SAG OR NON UNION FEMALES—PLEASE SEE BELOW FOR SPECIFIC BREAKDOWN. DO NOT EMAIL IN FOR MORE THAN ONE CATEGORY: A GIRLS: These are the hottest of the hottest. Models. MUST have real hair – no extensions, very classy looking, great bodies. You can be black, white, Asian, Hispanic, mid eastern, or mixed race too. Age 18-30. Please email a current color photo, your name, Union status, height/weight, age, city in which you live and phone number to: SandeAlessi- [email protected] subject line should read: A GIRLS B GIRLS: These are fine girls, long natural hair, really nice bodies. Small waists, nice hips. You should be light-skinned. Beyoncé is a prototype here. Age 18-30. Please email a current color photo, your name, Union status, height/weight, age, city in which you live and phone number to: [email protected] subject line should read: B GIRLS C GIRLS: These are African American girls, medium to light skinned with a weave. Age 18-30. Please email a current color photo, your name, Union status, height/weight, age, city in which you live and phone number to: [email protected] subject line should read: C GIRLS D GIRLS: These are African American girls. Poor, not in good shape. Me- dium to dark skin tone. Character types. Age 18-30. Please email a current color photo, your name, Union status, height/weight, age, city in which you live and phone number to: [email protected] subject line should read: D GIRLS1 It is not a controversial or bold statement to say that, in a variety of areas of law, the use of stereotypes on the basis of race, gender, nationality, or the like is 1. Hamilton Nolan, Straight Outta Compton Casting Call is Racist as Hell, GAWKER (July 17, 2014, 9:25 AM), http://gawker.com/straight-outta-compton-casting-call-is-racist-as-hell-1606524197. https://scholarship.law.missouri.edu/betr/vol2/iss2/3 2 Abdel-khalik: Scènes à Faire as Identity Trait Stereotyping Iss. 2] Abdel-khalik: Scènes à Faire 243 generally disfavored.2 Yet, in the context of the creative process, there remains at least one place in the law where stereotyping is not only recognized but perhaps even expected as the basic frame into which a creative mind will expand: the scènes à faire doctrine in copyright law. Scènes à faire are defined as “situations and inci- dents that flow necessarily or naturally from a basic plot premise.”3 As such, scènes à faire lack the requisite creativity to warrant copyright protection and instead are available for all creative minds to use as a foundation to be explored and developed in new ways for new works.4 A subcategory of scènes à faire is stock characters, which are defined as “characters who display generic traits.”5 For example, a magi- cian in a standard magician’s costume has been labeled a stock character.6 A stock character is often called some variation of a stereotypical archetype.7 The danger arises when a stock character is described as comprising an identity trait—such as race, ethnicity, gender, sexual orientation, gender expression, nation- ality, and the like—and an additional characteristic, which then propagates an iden- tity trait stereotype. In fact, from its inception in Nichols v. Universal Pictures, the very notion of stock characters is presented as infusing identity traits with some sort of stereotype when the court recognized “the low comedy Jew and Irishman” as stock characters.8 While not clearly defined by the court, these stock characters may be stereotypes pulled from the then existing creative industries and given power by the court’s recognition.9 Stereotypical assumptions about characters based on identity traits are not just a function of the past. Casting calls, which describe the expected, yet general, char- acteristics for specific roles, indicate current use of identity trait stereotypes by at least some in the creative industries. Consider the controversy surrounding the re- cent N.W.A. biopic. N.W.A. is widely considered one of the most influential rap groups that “brought gangsta rap into the mainstream.”10 In its highly acclaimed Straight Outta Compton album, N.W.A. “offered an uncompromising view of life as young black men on the streets of LA, delivered with unswerving aggression, braggadocio[,] and dark humour [sic].”11 In 2015, an N.W.A. biopic was filmed and 2. See, e.g., Wyatt Foret, Trans/forming Healthcare Law: Litigating Antidiscrimination Under the Affordable Care Act, 28 YALE J.L. & FEMINISM 243 (2017); Margaret Moore Jackson, Confronting “Un- welcomeness” from the Outside: Using Case Theory to Tell the Stories of Sexually-Harassed Women, 14 CARDOZO J.L. & GENDER 61 (2007); Arusha Gordon & Ezra D. Rosenberg, Barriers to the Ballot Box: Implicit Bias and Voting Rights in the 21st Century, 21 MICH. J. RACE & L. 23 (2015); Leonard M. Baynes, White Out: The Absence and Stereotyping of People of Color by the Broadcast Networks in Prime Time Entertainment Programming, 45 ARIZ. L. REV. 293 (2003). 3. Cavalier v. Random House, Inc., 297 F.3d 815, 823 (9th Cir. 2002). 4. See, e.g., Randolph v. Dimension Films, 634 F. Supp. 2d 779, 789 (S.D. Tex. 2009); Scott-Blanton v. Universal City Studios Prods. LLLP, 539 F. Supp. 2d 191, 201–202 (D.D.C. 2008). 5. Tanksley v. Daniels, 259 F. Supp. 3d 271, 290 (E.D. Pa. 2017).